Structure of and approach to Section 3 of Title II
Section 3 of Title II forms a self-contained code of jurisdiction in matters relating to insurance, though as Article 4 remains applicable to claims relating to insurance, the jurisdictional scheme established by the rules is generally confined to claims against defendants who have a domicile, or who are treated as though they had a domicile, in a Lugano State. Defendants who do not have such a domicile are liable to be subject to the traditional jurisdictional rules of the national law of the court seised by reason of Article 4. It is only the exclusive jurisdiction provisions of Article 22, and the power of a defendant to waive the jurisdictional protection of the court which would otherwise have had competence over the claim against him, by entering an appearance in accordance with Article 24, which may override the particular rules of Section 3.
The importance of the rules in Section 3 of Title II is reinforced by the rules on the enforcement of judgments in insurance matters from the courts of another Lugano
State. By way of exception to the general rule, the court in which enforcement is sought must refuse[1] to recognise the judgment if the jurisdiction of the original court conflicted with the provisions of Section 3 of Title 11. Though this last point might suggest that the judgment of a court, which had taken jurisdiction on the basis of the defendant’s entering an appearance before a court not otherwise having jurisdiction under Section 3, may be refused recognition, this is not so.
The term ‘insurance’ is not defined. It must have an autonomous meaning, but so far no case has needed to grapple with it, save for the decision that it does not extend to reinsurance. The Section refers to the parties to the insurance relationship, other than the insurer, as the insured, the policy-holder and the beneficiary. The policy-holder refers to the contracting party who originally took out the insurance. All others with an interest in the insurance will presumably fall within one of the remaining two terms.
So far as concerns the kinds of claim which will count as matters falling within the scope of the Section, the phrase ‘matters relating to’ denotes a material scope which goes beyond claims which are founded on, or seek the enforcement of, the contract of insurance itself by the original parties to it. For example, direct claims brought by an injured party against the insurer of a tortfeasor may not always be understood as enforcing the contract of insurance, as distinct from being founded on a specific statutory entitlement, but such claims are included within Section 3. A claim by an insurer to recover sums paid out, as a result of fraud, to (or to the order of) the insured is a matter relating to insurance, for a matter still may relate to insurance even though the claim between the parties does not have the contract of insurance as its object or basis. It has also held that if an injured claimant brings a direct claim against the tortfeasor’s insurer, it is open to her, if the law governing the direct claim allows it, to join the insured tortfeasor as a co-defendant, though the contention that the claim against the tortfeasor is a matter relating to insurance is certainly debatable. In each case the court has to weigh the need to give Section 3 the restrictive interpretation, which its exceptional character would generally have justified, against the utility of getting all the parties before the court in a single proceeding by which all will be bound. In the absence of specific judicial guidance, it may not be helpful to paraphrase the Convention, and be better to leave the question of when a matter relates to insurance to the common sense of the judge hearing the jurisdictional application.
As said, the general principle, that rules which would remove a defendant from his or its home court will be given a construction which is no wider than is needed to secure the aims of the provision in question, has played little part in the insurance cases. Indeed, in the one case in which it might have had an effect, FBTO Schadeverzekeringen NV v Odenbreit,'9 the decision led to Article 11(2) receiving a rather wider interpretation than might have been foreseen.
- [1] Article 35(1). 2 C-l 11/09 Ceská podnikatelskápojiSfovna as, Vienna Insurance Group v Bilas [2010] ECR 1-4545. 3 C-412/98 Universal General Insurance Co v Groupe Josi Reinsurance SA [2000] ECR 1-5925. 4 A more accurate, if inelegant, translation may have been ‘taker-out of insurance’. 5 Aspen Underwriting Ltd v Credit Europe Bank .VE[2020] UKSC 11, [2020] 2 WLR 919. 6 That makes life simpler than it might be, but insofar as the bringing of proceedings is stated to depend on whether the law governing the direct claim allows it, the substantive analysis of such liability, in order to determine the appropriate applicable of law rule for it, cannot be avoided. 7 Aspen Underwriting Ltd v Credit Europe Bank .VE[2020] UKSC 11, [2020] 2 WLR 919. 8 Keefe v Mutualidad Compañía de Seguros y Reaseguros SA [2015] EWCA Civ 598, [2016] 1 WLR 905. The joinder was held to be permissible by reference to Art. 13(3), whose language seems clear, though if Art. 11 depends on the matter being one relating to insurance, it is not so clear after all. 9 In Aspen Underwriting Ltd v Credit Europe Bank A E [2020] UKSC 11, [2020] 2 WLR 919, the court denied that there was need to give a restrictive interpretation to a provision which was consistent with, or reinforced, the basic rule that the defendant should be sued where it is domiciled.
